Answer To First Amended Petition For Writ Of Mandate In Balde V. Ausd

• LOUIS A. LEONE (SBN: 099874) KATHERINE A. ALBERTS (SBN: 212825) STUBBS & LEONE A Professional Corporation 2175 N. California Blvd., Suite 900 Walnut Creek, CA 94596 Telephone: (925) 974-8600 Facsimile: (925) 974-8601

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Attorneys for Respondents ALAMEDA UNIFIED SCHOOL DISTRICT and KIRSTEN VITAL

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SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA AISHA BALDE, JOLELE CHAN, TOMMY CHEUNG, DANIEL CHIN, HANDFORD CHIU, RICHARD CLARK, DIANE CLARK, MIKEL DEL ROSARIO, ARCHIE FELIX, J'AIME FELIX, WENDY FONG, SUE FONG, MARIA GUADALUPE GOMEZ, JUDY JOHANSING, DANLIN LI, KERRI LONERGAN, MATT LONGERAN, LIND MORGAN, JONATHAN STAIRS, and VICKI STAIRS, Petitioners, VS.

ALAMEDA UNIFIED SCHOOL DISTRICT, KIRSTEN VITAL, SUPERINTENDENT, in her official capacity. Respondents.

Case No.:. RG 09-468037 ANSWER TO FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDAMUS

BY FAX

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COMES NOW Respondents ALAMEDA UNIFIED SCHOOL DISTRICT ("DISTRICT") and KIRSTEN VITAL, and for their answer to the First Amended Verified Petition for Writ of Mandamus by Petitioners AIESHA BALDE ET AL. on file herein, admits, denies and allege as follows:

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Respondents oppose the issuance of the Writ of Mandamus prayed for by

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Petitioners in this action. The Education Code allows a parent to opt out their child from school lesson in very limited circumstances. California Education Code §51240 allows an opt out for a "school's instruction in health." The lesson at issue in this Petition, Lesson 9, is not part of the school's instruction in health, but rather was adopted by the District as part of its Caring School Community Curriculum. Lesson 9 is part of an antibullying and anti-harassment curriculum adopted pursuant to the District's statutory duty to provide safe and non-discriminatory schools to all students. Therefore, the Caring School Community Curriculum is not part of the "school's instruction in health" and not subject to the opt out in Education Code §51240. PARTIES

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1.

Responding to paragraph 1 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 1, and as such, the allegations are denied. 2.

Responding to paragraph 2 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 2, and as such, the allegations are denied. 3.

Responding to paragraph 3 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 3, and as such, the allegations are denied.

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• 4.

Responding to paragraph 4 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 4, and as such, the allegations are denied. 5.

Responding to paragraph 5 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 5, and as such, the allegations are denied. 6.

Responding to paragraph 6 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 6, and as such, the allegations are denied. 7.

Responding to paragraph 7 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 7, and as such, the allegations are denied. 8.

Responding to paragraph 8 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 8, and as such, the allegations are denied. 9.

Responding to paragraph 9 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 9, and as such, the allegations are denied. 10.

Responding to paragraph 10 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 10, and as such, the allegations are denied. 11.

Responding to paragraph 11 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 11, and as such, the allegations are denied. 12.

Responding to paragraph 12 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 12, and as such, the allegations are denied.

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13.

Responding to paragraph 13 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 13, and as such, the allegations are denied. 14.

Responding to paragraph 14 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 14, and as such, the allegations are denied. 15.

Responding to paragraph 15 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 15, and as such, the allegations are denied. 16.

Responding to paragraph 16 of the Petition, Respondents admit the

allegations contained therein.' 17.

Responding to paragraph 17 of the Petition, Respondents admit the

allegations contained therein. Jurisdiction and Venue 18.

Responding to paragraph 18 of the Petition, Respondents admit that

Petitioners purport to bring this action pursuant to California Civil Code §1085. 19.

Responding to paragraph 19 of the Petition, Respondents admit that

venue is proper in Alameda County. Statement of Facts 20,

Responding to paragraph 20 of the Petition, Respondents admit that

Lesson 9 of the District's Caring School Community curriculum was adopted by the District's Board of Education on May 26, 2009. Respondents also admit that Lesson 9 and the entire Caring School Community curriculum were adopted pursuant to the District's duties under the Student Safety and Violence Prevention Act of 2000, Education Code §200, Penal Code §422.6(a) and the District's Board Policies concerning student safety, discrimination and harassment. Respondents also admit that the entire Caring School Community curriculum is aimed at teaching safety and tolerance on the District's campuses as well as to prevent bullying and harassment.

Respondents admit that the goal of Lesson 9 is to create safe schools and to ensure that all students feel safe in our schools and that all students have equal access to a quality education. Respondents further admit that Lesson 9 is the part of the Caring School Community Curriculum. Except as expressly stated herein, Respondents denies each and every remaining allegation contained in paragraph 20. 21.

Responding to paragraph 21 of the Petition, Respondents admit that the

Kindergarten lesson in Lesson 9 is an introductory lesson to help students understand what makes children feel welcome, and to discover what the effect is of unwelcoming behavior, such as hurtful teasing, name calling and exclusion. Respondents also admit that the lessons for grades 1 — 3 discuss different family structures. Except as eipressly stated herein, Respondents denies each and every remaining allegation contained in paragraph 21. 22.

Responding to paragraph 22 of the Petition, Respondents admit that

Exhibit 1 page 5 states under the heading "Lesson Purpose" are three bullet points, which state: "To identify what makes a family" "To identify and describe a variety of families" and "To understand families have some similarities and some differences." Respondents also admit that Exhibit 1, page 6 states "Ask the class the following questions and record their answers on paper" and two of the listed questions are "What do family members give or share with each other?" and "What responsibilities do family members have?" Respondent admits that Exhibit 1 page 9 lists under "Lesson Purpose" two bullet points and that one of the bullet points is "To be able to identify alternative types of family structures." Respondents admit that Exhibit 1 page 13 lists under "About Talking About Families Class Meeting three bullet points and one of the bullet points is "The class meeting will also assist students in developing sensitivity to gay and lesbian family structures." Respondents admit that Exhibit 1, page 13 lists under "About Developing Empathy and Being an Ally" two paragraphs and one of the paragraphs states "Students will be introduced to an article by Robert, an 11 year old,

• whose families have two moms.' Except as expressly stated herein, Respondents denies each and every remaining allegation contained in paragraph 22. 23.

Responding to paragraph 23 of the Petition, Respondents admit that

Exhibit 1 page 23 states under "About Stereotypes including Lesbian, Gay, Bisexual and Transqender People" that "In this lesson students will increase their awareness of all stereotypes, including lesbian, gay, bisexual and transgender people." Respondents also admit that Exhibit 1 page 23 lists under "Lesson Purpose" four bullet points and one of them is "To learn that LGBT people are represented among all races, genders, religions, socio-economic classes and professions." Except as expressly stated herein, Respondents denies each and every remaining allegation contained in paragraph 23. 24.

Responding to paragraph 24 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 24 regarding whether Petitioners' religious training and beliefs and personal moral beliefs and Petitioners' ability to provide moral and religious training to their children, and as such, the allegations are denied. Moreover, Respondents admit that they received letters from parents purporting to opt their children out of Lesson 9 pursuant to Education Code §51240. Respondents admit that Section 51240 is quoted accurately. Except as expressly stated herein, Respondents denies each and every remaining allegation contained in paragraph 24. 25.

Responding to paragraph 25 of the Petition, Respondents lack sufficient

information and belief upon which to admit or deny the allegations in paragraph 25 regarding whether the attorney for Petitioners sent a letter to Superintendent Vital and the contents of said letter, and as such, the allegations are denied. Respondents deny each and every remaining allegation in paragraph 25. 26.

Responding to paragraph 26 of the Petition, Respondents admit that

Superintendent Vital sent a letter to parents who requested an opt out of Lesson 9 pursuant to Education Code §51240, and informed them that the Board's motion and

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approval of Lesson 9 did not include an opt out. Except as expressly stated herein,

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Respondents denies each and every remaining allegation contained in paragraph 26.

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27.

Responding to paragraph 27 of the Petition, Respondents admit that the

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letter sent by Superintendent Vital to parents who requested an opt out of Lesson 9

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pursuant to Education Code §51240, stated that "On May 26, 2009, the Board of

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Education approved the motion to adopt the Caring School Community curriculum

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supplement, Lesson 9 as part of its Safe School Community program. Lesson 9

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addresses issues of sexual orientation/gender identity. The Board's motion and

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approval did not provide an opt out option." Except as expressly stated herein,

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Respondents denies each and every remaining allegation contained in paragraph 27. '

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every allegation in paragraph 28. 29.

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Responding to paragraph 29 of the Petition, Respondents deny each and

every allegation in paragraph 29.

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Responding to paragraph 28 of the Petition, Respondents deny each and

FIRST CAUSE OF ACTION FOR WRIT OF MANDAMUS 30.

Responding to paragraph 30 of the Petition, Respondents incorporate by

reference their responses to paragraphs 1-29 as though fully set forth herein. 31. Responding to paragraph 31 of the Petition, Respondents deny each and every allegation in paragraph 31. 32.

Responding to paragraph 32 of the Petition, Respondents lack sufficient

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information and belief upon which to admit or deny the allegations in paragraph 32, and

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as such, the allegations are denied.

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33.

Responding to paragraph 33 of the Petition, Respondents lack sufficient

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information and belief upon which to admit or deny the allegations in paragraph 33, and

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as such, the allegations are denied.

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34. Responding to paragraph 34 of the Petition, Respondents deny each and every allegation in paragraph 34.

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35.

Responding to paragraph 35 of the Petition, Respondents deny each and

every allegation in paragraph 35.

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36.

Responding to paragraph 36 of the Petition, Respondents admit that

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Petitioners purport to petition this Court to issue a writ of mandamus, requiring

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Respondents to comply with Petitioners' written requests and excuse Petitioners'

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children from the parts of the Safe School Community Curriculum that conflict with their

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religious training and belief or personal moral convictions.

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37.

Responding to paragraph 37 of the Petition, Respondents deny each and

every allegation in paragraph 37.

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AFFIRMATIVE DEFENSES

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FIRST AFFIRMATIVE DEFENSE

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(Failure to State Claim)

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1.

As a first affirmative defense, Respondents allege and aver that

Petitioners' Petition, and each and every claim purportedly set forth therein, fails to sta a claim upon which relief can be granted.

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SECOND AFFIRMATIVE DEFENSE

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(Statute of Limitations)

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2.

As a second affirmative defense, Respondents allege and aver that some

or all of Petitioners' claims are barred by the applicable statutes of limitations, including but not limited to Cal. Gov't Code § 920 and 945.6 and Cal. Code Civ. Proc. §§ 338340, inclusive.

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THIRD AFFIRMATIVE DEFENSE

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(Waiver and Estoppel)

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• 3.

As a third affirmative defense, Respondents allege and aver that the

Petition, and each and every claim purportedly set forth therein, is barred by the doctrines of waiver and estoppel.

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FOURTH AFFIRMATIVE DEFENSE

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4.

(Laches) As a fourth affirmative defense, Respondents allege and aver that the

Petition, and each and every claim purportedly set forth therein, is barred by the doctrine of laches.

FIFTH AFFIRMATIVE DEFENSE (Failure to Mitigate) 5.

As a sixth affirmative defense, Respondents allege and aver that any

recovery on Petitioners' Petition, or any cause of action purportedly alleged therein, is barred in whole or in part by Petitioners' failure to mitigate damages. SIXTH AFFIRMATIVE DEFENSE (Privilege and/or Justification) 6.

As a sixth affirmative defense, Respondents allege and aver that any

recovery on Petitioners' Petition, or any cause of action purportedly alleged therein, is barred because Respondents' conduct was privileged and/or justified. SEVENTH AFFIRMATIVE DEFENSE (Governmental Tort Claim) 7.

As a ninth affirmative defense, Respondents allege and aver that

Petitioners failed to comply with the claim provisions of the California Governmental Code with respect to the timely presentation of a Governmental Claim. Further, Petitioners' claim, if submitted, differs materially from the allegations contained within the Petition, and as such, said claims not referenced in the Governmental Claim are barred. EIGHTH AFFIRMATIVE DEFENSE (Good Faith Immunities)

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8. As a eighth affirmative defense, Respondents allege and aver that its is

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immune from the allegations and causes of action contained within the Petition based

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upon the qualified and good faith immunities available under California Law.

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NINTH AFFIRMATIVE DEFENSE

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(Failure to Exhaust Remedies)

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9.

As an ninth affirmative defense, Respondents allege and aver that any

recovery on Petitioners' Petition, or any purportedly alleged claim therein, is barred because Petitioners has failed to invoke and exhaust administrative remedies required

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to be invoked and exhausted prior to the commencement of any action for recovery on the grounds asserted in the Petition.

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TENTH AFFIRMATIVE DEFENSE

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(Government Code Immunities)

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10.

As a tenth affirmative defense, Respondents allege and aver that they are

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immune from the allegations and causes of action contained within the Petition based

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upon the immunities available under California Government Code §815 at seq. and

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§820 at seq., including but not limited to Government Code §§820.2 and 815.2(b).

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ELEVENTH AFFIRMATIVE DEFENSE

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(Failure to Exhaust Judicial Remedies)

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11.

As a eleventh affirmative defense, Respondents allege and aver that any

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recovery on Petitioners' Petition, or any purportedly alleged claim therein, is barred

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because Petitioners failed to exhaust the judicial remedies available to them.

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TWELFTH AFFIRMATIVE DEFENSE

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(Unclean Hands) 12.

As a twelfth affirmative defense, Respondents allege and aver that the

Petition, or any purportedly alleged claim therein, is barred in whole or in part by reason of Petitioners' unclean hands.

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THIRTEENTH AFFIRMATIVE DEFENSE

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(Failure to State Sufficient Facts)

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neither the Petition nor any of the alleged causes of action therein state facts sufficient to constitute a cause of action against these answering Respondents.

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FOURTEENTH AFFIRMATIVE DEFENSE

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As a thirteenth affirmative defense, Respondents allege and aver that

(Separation of Powers) 14.

As a fourteenth affirmative defense, Respondents allege and aver that

the relief sought in the Petition, if awarded, would violate the separation of powers doctrine between the judicial branch and a state administrative/legislative agency.

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FIFTEENTH AFFIRMATIVE DEFENSE

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(Lack of Standing)

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15.

As a fifteenth affirmative defense, Respondents allege and aver that any

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recovery on the Petition, or any cause of action purportedly alleged therein, is barred in 15 16

whole or in part by the fact that Petitioners and each them lack standing. SIXTEENTH AFFIRMATIVE DEFENSE

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(Good Faith)

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16.

As a sixteenth affirmative defense, Respondents allege and aver that any

recovery on the Petition, or any cause of action purportedly alleged therein, is barred in whole or in part by the fact that the subject program is mandated by state law and as such, Respondents acted in good faith.

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SEVENTEENTH AFFIRMATIVE DEFENSE

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(Mootness)

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17.

As a seventeenth affirmative defense, Respondents allege and aver that

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any recovery on the Petition, or any cause of action purportedly alleged therein, is

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barred in whole or in part because such causes of action are moot.

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EIGHTEENTH AFFIRMATIVE DEFENSE

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(Ripeness)

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As a eighteenth affirmative defense, Respondents allege and aver that

any recovery on the Petition, or any cause of action purportedly alleged therein, is barred in whole or in part by the doctrine of ripeness.

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NINETEENTH AFFIRMATIVE DEFENSE

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(Reservation of All Defenses) 19.

Because Petitioners' Petition is couched in conclusory terms, these

answering Respondents cannot fully anticipate all defenses that may apply to this action. Accordingly, Respondents reserve the right to assert additional defenses, if and to the extent that such defenses apply to this action.

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WHEREFORE, Respondents pray that the Court order a judgment decree: 14

1.

That Petitioners take nothing by their Petition;

2.

That the Court deny Petitioners' request for a writ of mandate;

3.

That the Court deny Petitioners' request for attorneys' fees and

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costs; 4.

For an award of Respondents' attorneys' fees;

5.

For an award of Respondents' costs of suit; and,

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For such other and further relief as the Court may deem just and

proper.

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PRAYER WHEREFORE, these answering Respondents pray that Petitioners take nothing 3

by their Petition and that these answering Respondents be dismissed hence with its costs of suit incurred herein and for such other further relief as the Court deems fit and proper.

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Dated: October4, 2009

STUBBS & LEONE

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LOUIS A. LEONE, ESQ. KAT HERINE A. ALBERTS, ESQ. Attorney for Respondents ALAMEDA UNIFIED SCHOOL DISTRICT arid KIRSTEN VITAL

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